Courts Commons^™

Cruises, Class Actions, And The Court, David Korn, David Rosenberg

University of Michigan Journal of Law Reform Caveat

As the Carnival Triumph debacle splashed across the national consciousness, lawyers shook their heads. Sensationalist news coverage exposed common knowledge in the legal community: cruise passengers have little recourse against carriers, and, as a result, they often bear the brunt of serious physical and financial injuries. Cruise lines, escaping legal accountability for their negligence, sail off undeterred from neglecting passenger safety on future voyages. While its previous decisions helped entrench this problem, a recently argued case presents the Supreme Court with another opportunity to address it.

Government May Not Speak Out-Of-Turn, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

Johanns v. Livestock Marketing Association5 was about whether government could compel individual beef producers to pay for general beef advertising credited to "America's Beef Producers;" even if they disagreed with the message and wanted to spend their advertising money to distinguish their certified Angus or Hereford beef. That "compelled subsidy" case became the unlikely authority for a doctrine invented in Pleasant Grove City, Utah v. Summum6 that government could discriminate, based on viewpoint, on a subject for which it had no power to act. Each case has been criticized in its own right, but the attempt to make Johanns precedent …

The Revolution In Family Law Dispute Resolution, John M. Lande

Faculty Publications

This article surveys a wide range of procedures that divorcing parties now use, including self-representation. Lawyers sometimes provide “unbundled” legal services to help parties who want to divide responsibilities for legal tasks between themselves and their lawyers. Parties often use mediation, arbitration, and private judging. Norms for lawyers’ professional roles have emphasized the importance of cooperation and some lawyers offer “planned early negotiation” processes such as Collaborative and Cooperative Law. Family courts engage in a wide range of activities beyond traditional litigation and adjudication. Many courts manage or mandate parent education and services related to domestic violence. Courts regularly appoint …

Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben L. Trachtenberg

Faculty Publications

Using the example of a recent major terrorism prosecution, this article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking” - defined as pretty much any cooperative activity - even if the “conspiracy” is not illegal. Because this new interpretation …

2011 Patent Law Decisions Of The Federal Circuit, Robert A. Pollock, Linda A. Wadler, Robert D. Litowitz, Joyce Craig, Bart A. Gerstenblith, Christina Szakaly, Zhenyu Yang, Mindy L. Ehrenfried

American University Law Review

No abstract provided.

2011 Government Contract Law Decisions Of The Federal Circuit, Joel Singer, Kyle Fiet, Matthew Solomson, Benjamin Glerum

American University Law Review

No abstract provided.

Prefering Order To Justice, Laura Rovner, Jeanne Theoharis

American University Law Review

No abstract provided.

Achieving Fundamental Fairness For Oklahoma's Juveniles: The Role For Competency In Juvenile Proceedings, Mary Sue Backus

Oklahoma Law Review

No abstract provided.

Article Iii And Removal Jurisdiction: The Demise Of The Complete Diversity Rule And A Proposed Return To Minimal Diversity, Rodney K. Miller

Oklahoma Law Review

The complete diversity rule is broken. Although easily applied in theory (federal courts can exercise subject matter jurisdiction over an action on diversity grounds only when no party is of the same citizenship as any adverse party), over time the number of judicially and legislatively created exceptions to the rule, as well as their varying and inconsistent application by the federal courts, has created an environment in which similarly situated parties are treated differently based solely on the forum in which the litigation is brought. In the removal context, depending upon the forum in which an action is filed, a …

Unlikely To Succeed: How The Second Circuit's Adherence To The Serious Questions Standard For The Granting Of Preliminary Injunctions Contradicts Supreme Court Precedent And Turns And Extraordinary Remedy Into An Ordinary One, Jacob S. Crawford

Oklahoma Law Review

No abstract provided.

Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis

Michigan Journal of Environmental & Administrative Law

Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …

Understanding The Exceptional And Dynamic Nature Of Boumediene Rights To Court Access, Andrew Kent

Faculty Scholarship

This short piece replies to Professor Steve Vladeck's comments on my essay 'Do Boumediene Rights Expire?' 161 U. Pa. L. Rev. Pennumbra 20 (2012), available at http://ssrn.com/abstract=2166103. In this reply, I further develop the argument that Boumediene rights to court access may have expired for those Guantanamo detainees determined through habeas litigation to be enemy fighters; and whether these judicially-confirmed enemy fighters have continuing rights court access under Boumediene goes to the federal courts' subject matter jurisdiction, meaning that the Obama administration's concession of continued court access is inoperative and federal courts must sua sponte raise and decide the issue.

The Predicament Of China's "Wto-Plus" Obligation To Eliminate Export Duties: A Commentary On The China-Raw Materials Case, Julia Ya Qin

Law Faculty Research Publications

No abstract provided.

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

Article Iii Judicial Power And The Federal Arbitration Act, Roger J. Perlstadt

UF Law Faculty Publications

Arbitrators determine facts and apply law to those facts to bindingly resolve disputes between two or more parties, a task normally reserved for judges. The Federal Arbitration Act (FAA) makes agreements to arbitrate disputes enforceable, including disputes that would normally be heard by an Article III judge, such as those arising under federal law or between parties of diverse citizenship. Accordingly, disputes subject to an arbitration agreement brought before a federal court for adjudication must instead, pursuant to the FAA, be resolved by an arbitrator. Yet, while Article III ostensibly mandates that life-tenured and salary-protected judges decide such disputes, arbitrators—selected …

The Viability Of An Insanity Defense In Federal Revocation Proceedings, Donna L. Eng

UF Law Faculty Publications

It's not an uncommon scenario: your client, who suffers from mental health issues, was given a probationary sentence. While on probation, your client stops taking his medication and has a mental breakdown in a public location. The police are called, and instead of just being involuntarily committed pursuant to the Baker Act, your client is also charged with violating the terms of his probation as a result of his interactions with the officers on scene.

The New Federal Circuit Mandamus, Paul R. Gugliuzza

UF Law Faculty Publications

This Article explores an ongoing revolution in the mandamus jurisprudence of the U.S. Court of Appeals for the Federal Circuit, the court of appeals with nearly exclusive jurisdiction over patent cases. Before December 2008, the Federal Circuit had never used the interlocutory writ of mandamus to order a district court to transfer a case to a more convenient forum, denying each one of the twenty-two petitions it had decided on that issue. Since that time, however, the court has overturned eleven different venue decisions on mandamus. Remarkably, ten of those eleven cases have come from the same district court, the …

Rethinking Federal Circuit Jurisdiction, Paul R. Gugliuzza

UF Law Faculty Publications

Thirty years ago, Congress created the Federal Circuit for the overriding purpose of bringing uniformity to patent law. Yet less than half of the court’s cases are patent cases. Most Federal Circuit cases involve veterans benefits, government-employment actions, government contracts, and other matters. Although existing literature purports to study the Federal Circuit as an institution, these projects focus largely on the court’s patent cases. This Article, by contrast, considers whether the court’s nonpatent docket might affect the development of patent law and whether the court’s specialization in patent law has consequences for how it decides nonpatent cases.

These inquiries result …

A Judicial Retrospective: Significant Decisions By The Arkansas Supreme Court From 1991 Through 2011, Robert L. Brown

University of Arkansas at Little Rock Law Review

In 2008, a study issued by the University of Chicago ranked the Arkansas Supreme Court as the second best state supreme court in the nation, based on the justices' productivity in issuing opinions, quality of opinions, and independence from partisan pressures. The last two decades have seen the Arkansas Supreme Court issue a multitude of opinions considering separation of powers, public education, prior restraint of the press, expanded rights under the Arkansas Constitution, class actions and tort reform.

This article highlights many of the most significant opinions from the last two decades and comments on their impact in Arkansas and …

A Review Of When Legal Orders Collide: The Role Of Courts By Sabino Cassese, Kathleen Claussen

Indiana Journal of Global Legal Studies

The growth and interaction of legal orders beyond the state has precipitated considerable interest among scholars and practitioners. The resulting discussion both in the academy and in the upper reaches of government about the intersection of national legal orders with new areas of non-national law has led to various predictions about possible ramifications of this phenomenon. In recent years, the importance of these transnational questions has grown concurrently with the expansive creation and heightened activity of supranational and global organizations.' Some have gone so far as to herald a new global law, and others have elaborated upon its contours.2 Sabino …

Runaway Usance: Limiting The Exercise Of The Fugitive Disentitlement Doctrine In The Context Of Wenqin Sun V. Mukasey And Bright V. Holder, Lawrence S. Winsor

Georgia Law Review

The fugitive disentitlement doctrine prevents an evasive
party from obtaining standing in the court whose
authority is evaded. With its 2011 decision in Bright v.
Holder, the Fifth Circuit Court of Appeals created a circuit
split regarding whether the fugitive disentitlement
doctrine applies to an alien appealing an adverse
immigration decision that maintained the same address
throughout removal proceedings, this address was known
to the Department of Homeland Security (DHS), and DHS
made no attempt to locate or arrest the alien for failure to
report for removal. Unlike the Ninth Circuit Court of
Appeals' decision in Wenqin Sun v. Mukasey, …

Televising The Supreme Court: Why Legislation Fails, R. Patrick Thornberry

Indiana Law Journal

No abstract provided.

Work-Family Conflict And The Pipeline To Power: Lessons From European Gender Quotas, Julie C. Suk

Articles

The article examines the persistent gender disparities at the top of the legal profession, attributing them to work-family conflict and the disproportionate impact of caregiving responsibilities on women. It explores European gender quotas as a potential solution, arguing that such measures address the legitimacy and effectiveness of institutions by ensuring gender parity in leadership positions. While acknowledging the challenges in implementing quotas in the U.S., the analysis suggests that European approaches offer valuable insights for addressing the "leaky pipeline" and advancing gender equality in the legal profession.

New York Tax Warrants: In The Strange World Of Deemed Judgments, David G. Carlson

Articles

No abstract provided.

Border Skirmishes: The Intersection Between Litigation And International Commercial Arbitration, S. I. Strong

Faculty Articles

National courts are becoming increas­ingly involved with international commercial arbitration. Although this observa­tion may be disheartening to those who support the autonomy of the international arbitral regime, the continued interaction between courts and tribunals is less troubling to those who view international commercial arbitration as a "hybrid" method of dispute resolution, with numerous opportunities for permissible "border crossings. "

That is not to say that courts can or should become involved with every as­pect of arbitration. Instead, impermissible "border incursions" diminish the effec­tiveness of international commercial arbitration and could erode public or private support for the international arbitral regime. Therefore, …

Saluting Judge Philip Pro's Quarter Century Of Nevada District Service, Carl W. Tobias

Law Faculty Publications

United States District Judge Philip M. Pro recently assumed senior status after more than two dozen years of exemplary service-five as chief judge-on the U.S. District Court for the District of Nevada, the federal trial court that serves the entire state of Nevada. Everyone who knows Judge Pro understands that senior status will not mean semi-retirement for him because he will continue devoting his tremendous energy to assuring that the District of Nevada promptly, inexpensively, and fairly resolves the myriad challenging cases on its docket.

Summary Pre-Judgment: The Supreme Court's Profound, Pervasive And Problematic Presumption About Human Behavior., Michael J. Kaufman

Faculty Publications & Other Works

No abstract provided.

The Eleventh Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center: Are Federal Judges Competent? Dilettantes In An Age Of Economic Expertise, The Honorable Jed Rakoff

Fordham Journal of Corporate & Financial Law

The title of my little talk here tonight is “Are

Federal Judges Competent?” This naturally raises the question of whether I am competent to answer that question. I put this question to myself, and, after careful consideration of both sides of the argument, concluded that I am competent to determine whether I am competent. As H. L. Mencken once said, “A judge is a law student who grades his own exams.”

The Worst Supreme Court Case Ever? Identifying, Assessing, And Exploring Low Moments Of The High Court, Jeffrey W. Stempel

Scholarly Works

No abstract provided.